Chile and Bolivia: Possible scenarios regarding the conflict over the Silala River

RIO DE JANEIRO, BRAZIL – After a long journey initiated in April 2016, with a brief signed by the current Undersecretary of Foreign Affairs, Ximena Fuentes, Chile’s lawsuit against Bolivia for the use of the waters of the Silala River will begin this Friday, April 1, the stage of oral arguments.

The Chilean Foreign Ministry authority, who is also an academic of the Faculty of Law of the University of Chile, traveled this Sunday to The Hague to be part of the instance by which our country seeks to ratify the international character of the river that currently flows towards the Region of Antofagasta.

The case was prolonged due to the restrictions and sanitary measures adopted by the International Court of Justice in the context of the COVID-19 pandemic, which at some point paralyzed its activity. For this reason, the pleadings on this occasion will be held in a hybrid format and without an audience, unlike the previous cases that Chile had with Peru and Bolivia before this court.

In addition to not allowing the presence of diplomats and other persons interested in the pleadings, on this occasion, “each party will have to present separately. One day, Chile will be transmitting its arguments, and another day, Bolivia will be there, with the hearings starting at 3:00 PM, Netherlands time, because they will be coordinated with judges who will be connected from other places,” explains Professor Astrid Espaliat, an expert in International Law and academic of the Institute of International Studies of the University of Chile.

CHILEAN AND BOLIVIAN POSITION

Professor Espaliat details that Chile’s position is based on the fact that the Silala is an international watercourse and, therefore, is governed by the standards set by the “United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses,” which contemplates a reasonable and equitable use of the same.

“Neither Chile nor Bolivia are parties to that Convention, but it is possible to apply traditional standards, that is, customs that also constitute legal norms to resolve conflicts between States, which exists in the international legal order. Bolivia has already admitted this issue, which recognized that the Silala is an international watercourse even through declarations of high-level officials,” said the IEI academic.

In this regard, Claudio Troncoso, professor of the Faculty of Law of the University of Chile, an expert in International Law, and former legal director of the Ministry of Foreign Affairs, stressed that Chile “arrives on an excellent footing, because when the lawsuit was filed Bolivia denied the international character of the Silala, assuring that its course had been artificially diverted to Chile. One must consider that Bolivia had never discussed the international character of the river until 1999, which is when it changed its position to this theory, which is relatively new”.

From that point on, “Bolivia tries to present an argument that in our opinion is very weak, based on a canalization work carried out in 1928 by a British capital company with Bolivian authorization, some irrigation ditches, which have the effect of increasing the flow a little with a flow of water that they call ‘artificial’, and which would be entirely Bolivian and – therefore – not subject to the rules of customary law on the equitable and reasonable use of waters,” a distinction that the academic assured would have no basis in international law.

THE ROLE OF EXPERTS

Unlike Chile’s previous cases with Peru and Bolivia, there will be a stage in which each country will present experts to support its position, said Professor Espaliat. “There are scientific issues that will be addressed by the experts, who in this case, unlike in previous cases, will present and be questioned by the opposing side and the judges if they deem it necessary. In particular, Chile will present some hydrologists among the best in the world, and Bolivia will also present its experts to discuss this matter,” said the academic.

On the other hand, one must consider that, so far, the court has not made public the written arguments presented by each country, which usually happens on the same day the arguments begin, in this case on April 1. Only on that day will the arguments of both parties be made explicitly known.

WHAT COMES NEXT?

The oral arguments will be extended until April 14, when the judges’ deliberations will begin, a stage whose length will depend entirely on the jurists. “In the case of Peru with Chile, it took quite a long time, while in the case of Bolivia with our country, it was a little shorter. It depends on the court’s work, and in this case, it has quite a backlog, and on whether the pandemic is kept under relative control, as it has been up to now, with hybrid pleadings,” Espaliat remarked.

When asked about the possible scenarios once the trial is closed, Professor Troncoso remarked that although the Chilean position is quite solid, “both parties are committed to complying with the Court’s ruling, and in any event, the solution will be positive because it will mean the end of the controversy, and the possibility of advancing in a much greater relationship of integration and cooperation,” something fundamental for two neighboring countries that share 860 kilometers of the border and numerous common issues, he assured.